Rich v. Manhattan Ry. Co.

• Decision Date: 30 October 1896
• Citation: 44 N.E. 1097,150 N.Y. 542
• Parties: RICH v. MANHATTAN RY. CO. et al.
• Court: New York Court of Appeals Court of Appeals

150 N.Y. 542

44 N.E. 1097

RICH

v.MANHATTAN RY. CO. et al.

Court of Appeals of New York.

Oct. 30, 1896.

Appeal from supreme court, general term, Third department.

Action by Alexander Rich against the Manhattan Railway Company and others. Judgment for defendants (19 N. Y. Supp. 543), which was affirmed by the general term (27 N. Y. Supp. 1129), and plaintiff appeals. Affirmed.

E. Countryman, for appellant.

Brainard Tolles, for respondents.

GRAY, J.

In our judgment, this appeal by the plaintiff in the action does not authorize us to review the merits of the interlocutory judgment, which was affirmed at the general term, and upon the affirmance of which the final judgment in the action was entered dismissing the complaint. The plaintiff had appealed from the interlocutory judgment, which was entered at the special term, to the general term of the court, where the same was affirmed, and thereupon final judgment was entered. From that final judgment the plaintiff took an appeal to the general term, and that court has affirmed the same. The notice of appeal to this court is from that determination of the general term, and it does not specify anything else as a subject for review. The provisions of the Code of Civil Procedure are specific with reference to appeals, and they must be strictly pursued. The right to appeal in civil cases is not an inherent right, but is purely statutory. The jurisdiction of this court is designated and created by law, and it has no other. Hewlett v. Elmer, 103 N. Y. 164, 8 N. E. 387. Referring to section 1336, we find this provision, viz.: ‘Where final judgment is rendered in the court below, after the affirmance, upon an appeal to the general term of that court, of an interlocutory judgment, * * * the party aggrieved may appeal directly from the final judgment to the court of appeals, notwithstanding that it was rendered at a special term, or at a trial term. * * * But such an appeal brings up, for review, only the determination of the general term, affirming the interlocutory judgment,’ etc. Had the plaintiff, who was aggrieved by the affirmance of the interlocutory judgment, which dismissed his complaint, complied with that section, and had he come here directly, by way of appeal from the final judgment entered upon the interlocutory judgment, we should have been authorized to review the merits of that interlocutory judgment. What he did do, however, was to follow the provisions of section 1350, which are, that: ‘Where final judgment is taken, at a special term or trial term, * * * after the affirmance, upon an appeal to the general term, of an interlocutory judgment; * * * an appeal to the general term from the final judgment brings up, for review, only the proceedings to take the final judgment, or upon which the final judgment was taken, including the hearing or trial of the other issues in the action, if any. If an appeal is taken, to the court of appeals, from the determination of the general term, upon the appeal from the final judgment, the determination of the general term, affirming the interlocutory judgment * * * may, at the election of either party, be reviewed thereupon,’ etc. The effect of following the procedure prescribed in this section is the submission to the general term of any question as to the regularity of the proceedings leading up to the final judgment, or of other issues in the action, if...